Coal Industry Attempts Secession

Water is perhaps the ultimate argument for federalism. It’s everywhere. It crosses every line. It’s in the air, it’s on the surface, it’s underground, it’s all around. Even many of the anti-science, reality denying cowards in Congress like Nick Rahall understand the basic fact that rivers don’t stop at a state line. But that doesn’t stop politicians from trying to “secede” from keeping America’s water clean. Yesterday, the House Transportation and Infrastructure Committee passed “The Clean Water Cooperative Federalism Act (HR 2018)“, an appalling bill that directly attempts to remove federal authority from regulating water, and attempts to – gulp! – “turn water authority back over to the states.”

Now, by this point in the 112th Congress it’s pretty obvious what they mean by “turn water authority back over to the states.” They mean: We need to streamline mountaintop removal coal mining permits while ignoring the human, ecologic, and aquatic damage that will result from these devastating operations.

If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e. — build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.

Ignore the costs. Ignore the damage. Ignore the sickness, death, and destruction, and STREAMLINE THOSE PERMITS!

Maybe it was too much to ask that Rahall and the coal lobby’s stupid and dangerous position against clean water would reach its limit when they successfully restricted the hydrosphere to waterbodies big enough to operate a schooner. But as of yesterday we’ve entered a whole new anti-water world. And, as many Members in the Committee noted, this is the closest we have come to overturning the Clean Water Act since its inception in 1972 when major river systems were catching on fire.

Congressman Rahall and Chairman Mica passed HR 2018 in the same way they dream that Central Appalachian coal companies should receive permits to destroy mountains, streams, and communities. The bill markup for 2018 was hastily announced late Monday evening. It never received a single subcommittee hearing or markup, let alone a full committee hearing. But hey, it’s just water. It’s not like dumping toxic waste into it causes birth defects, sickness, and death?

Impacted residents from Appalachia packed the Water Resources Subcommittee twice already this year when one-sided hearings on streamlining mountaintop removal permits were held. By foregoing a hearing, skipping the subcommittee, announcing it late, and going straight to a markup, Rahall and his anti-water colleagues in Congress were making sure to avoid such an inconvenient show of democracy.

The bill caused an uproar not only for the way it was brought up for a vote, but for its noxious and dangerous content.

Democratic Ranking Member Tim Bishop (NY-01), who represents much of Long Island said:

This legislation threatens us to… return us to the days we we could not allow our children to swim in the local lake or ocean.

Steve Cohen of Tennessee, whose district border IS the ever-changing Mississippi River:

Water doesn’t know state boundaries.

Peter Defazio (D-OR) said:

This bill essentially takes us back to 1971, [before the Clean Water Act was passed].

Jerrold Nadler of New York said:

This bill basically undoes the Clean Water Act in all meaningful situations.

Congressman Mike Capuano of Massachusetts was even more plain. He spoke eloquently of the millions of dollars of state money that Massachusetts has spent to keep its water clean. All of which would be threatened if neighboring states no longer had to follow the Clean Water Act. The Congressman said:

If we can build a barrier to keep water from other states flowing into our state, give us some federal money to do it. Don’t make it so we have to suffer from what you do.

What would the Clean Water Cooperative Federalism Act mean for Appalachia? Well, as we said, the Clean Water Cooperative Federalism Act would gut the Clean Water Act by making states, rather than the EPA, the ultimate arbiter of water quality standards in the nation’s waters. In states where mountaintop removal coal mining is practiced, this would be a disaster in light of the states’ records on permitting and enforcement. In Kentucky and West Virginia, companies commit tens of thousands of violations of water quality standards that go unnoticed and unpunished every year by state regulators. Without EPA oversight, there would be no protections for communities or the environment.

Under the Clean Water Cooperative Federalism Act, the current uniform national standards for water quality would be replaced by a patchwork of state standards driven downward by industry pressure on captured regulators to improve corporate bottom lines rather than protect health.

Each state would be able to refuse to implement standards for toxic pollutants that the scientific community has agreed were necessary to protect health and the environment. (CWCFA Section 2(a).) In states where mountaintop removal coal mining occurs, this legislation would allow legislatures and executive agencies beholden to the coal industry to refuse to implement improved water quality standards for selenium, for example, despite the substantial evidence developed since EPA first issued selenium standards that selenium accumulates and causes reproductive deformities in fish and other animals and puts human health at risk by making fish and water unsafe for human consumption. (cite.)

The legislation would make states, not the EPA, the final arbiters of whether an NPDES permit or a fill permit met the requirements of the Clean Water Act. EPA would be prevented from overriding state NPDES permits issued under guidelines established before more recent scientific studies showed the older standards to be inadequate. (CWCFA section 2(b).) EPA no longer would be able to object to a state NPDES permits on the ground that EPA determined that the proposed permit violates the state’s own water quality standard. (CWCFA Section 2(d).) EPA also would be prevented from overriding fill permits even when EPA determined that the fills would have an unacceptable adverse effect on water resources. (CWCFA section 3(a).)

The legislation also includes a provision designed to make decisions to deny permits more likely to be overturned in court in litigation brought by permit applicants. It reduces the time that the EPA and U.S. Fish and Wildlife Service have to review and comment on proposed fill permits, which in mountaintop removal coal mines typically propose several miles of valley fills, to 30 days. (CWCFA Section 2(c).) States would be allowed to opt out of implementing federal water quality standards. As a result, downstream communities in other states would have no say, but would nevertheless be affected.

Raised on the banks of the Tennessee River, JW's work to create progress in his home state and throughout Appalachia has been featured on the Rachel Maddow Show, The Daily Kos and Grist. He served first as Appalachian Voices’ Legislative Associate and then Tennessee director until leaving to pursue a career in medicine in 2012.

8 COMMENTS

Actually, water is an argument AGAINST Federalism. Federalism is the doctrine that the bulk of the political power should lie with the States, the Federal government only legislating in a narrow and strictly limited range of matters. Unless you are Humpty-Dumpty, of course.

JW as I was putting in my zip code for my state representative to pop up, I felt an urge to upchuck as I knew whose name was going to appear….Rahall….I had to change the wording a little on the form but feel better now. Thanks for keeping us updated!

BAW- Wikipedia talks about federalism as “a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). So it is a balance between the two, which is what the Clean Water Act is now. This bill would throw the balance much more heavily to the states, where industry capture is a rampant phenomenon, especially in extractive resource intensive states.

Interesting that the writer of this post focuses only on coal mining. There was a Congressional hearing today about nutrients where ECOS, ASIWPCA, Northeast States, Florida and the Wastewater Utility national organization all spoke to the problems that states are having with EPA usurping state authority and repeatedly hindering the states ability to make progress in the implementation of their delegated water resource programs. Hearing after hearing there is this repeated unanimous theme among the states that the current EPA has abused the authority granted it under the Clean Water Act.

So, you can say this is a coal issue, but in truth it is far more than that. It is a state rights issue and it is a cooperative federalism issue that EPA has over-stepped on. Laws may not get changed in this Congress since the Senate won’t take it up and even if they did the President would likely veto. But rest assured this issue is not going away. The Obama EPA has strained state/federal relations to a degree never seen and there will be consequences eventually.

There are legitimate reasons why bipartisan concern among the states is being so vigorously expressed. Among them include EPA’s unwillingness to accept any practical implementation of standards that in many cases are unachievable. EPA is driven by solely by science and law, and cares not for real world implications or practicality.

EPA has been making friendly deals with environmental groups in response to agreed upon litigation in order to justify this EPA’s implementation of the NGO agenda for a while now. That game is going to catch up with EPA

Sandra, actually you are incorrect about that. There is nothing equal about the current Clean Watch Act law. The federal government holds all the cards. The can currently object to permits without any judicial recourse available to a state. EPA can effectively object to a delegated state draft permit and is under no obligation to ever take any action, and that is they have done. For all intents and purposes they can hijack a state program anytime they want. That isn’t a balance, that is unlimited federal power without any accountability or recourse to states. H.R. 2018 establishes does establish more of a balance, but it does not strip EPA of their ability to engage in and deal with interstate waters. That’s yet another red herring that EPA has thrown out in effor to kill the legislation.

Hey William,
When you say that EPA has “usurped the state authority” and have “hindered the states ability to make progress” then EXACTLY what do you mean by progress? Do you mean the ability of the state to pass laws that compromise the water in favor of industry? Do you mean that states authority to choose short term financial gain by selling out the trout and other river life? Do you seriously think that it is no coincident that one of the sponsors of this bill is from WV, where the state is OWNED by the coal industry, and pollution is RAMPANT ! How can you spew such comments and expect to be taken seriously by anyone except a person sold out to coal. Anyone who had any doubts about the facts of coal only have to read the recent and ongoing headlines about Massey Energy and their safety record.

If you don’t believe that USEPA has not went beyond their authority, then you probably aren’t aware of litigation in the D.C. Circuit where the judge, in an order, indicated that EPA has clearly went beyond the authority granted it under the CWA in establishing different procedures for enhanced review under the CWA 404 program and in establishing water quality standards for states under 303(c) of the CWA, much less what USEPA is doing with respect to CWA 402 permits. This is what the courts are saying. If you have a beef, it’s not with me, it’s with the D.C Circuit Court. USEPA staff are well aware of the over-reach.

PS to Sandra, You hit on something. This is confederation, not federalism. West Virginia was created by people wanting to avoid the original Confederacy, but now the tide seems to be going the other way!

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